Judge Properly Disqualified Law Firm That Conferred With
Mediator Who Had Confidential Information

By a MetNews Staff
Writer

The Court of
Appeal held yesterday that a judge properly disqualified a law firm from
representing a plaintiff in a wage-and-hour lawsuit because an attorney in the
firm consulted with outside counsel who had mediated such a dispute involving
different plaintiffs suing the same employer.

The ruling came
in an unpublished opinion by Justice Gene M. Gomes of the Fifth District.

The employer,
Foster Farms, a poultry company, found out about the consultation from what the
plaintiff’s lawyers had intended as an internal email, but inadvertantly sent
to the defendant’s lawyers.

Gomes said the
disqualification order “implies a finding that Foster Farms disclosed
confidential information” during the mediation which was imparted to the law
firm handling the present litigation.

The mediator, he
said, would have been disqualified from representing the present plaintiff.

“[T]the rules
governing attorney disqualification in traditional attorney/client
relationships apply with equal force to situations where an attorney has formed
a confidential relationship with a litigant while acting as a neutral
mediator,” he wrote.

And if the
mediator would be disqualified, so would attorneys who conferred with that
mediator, Gomes declared, explaining:

“An attorney-mediator’s
conflict of interest vis-à-vis a litigant with whom he or she has formed a
confidential relationship through mediation can be vicariously imputed to other
attorneys and law firms. For this to occur, the tainted attorney-mediator must
have first established a representative relationship with an adverse party in
the same matter in which the first confidential relationship arose, or in a
matter that is substantially related to the previously mediated case.”

The pleadings in
both the mediated case and the present case, he noted, “allege causes of action
for failure to pay required wages and overtime compensation in violation of
Labor Code section 1194, failure to comply with the record-keeping requirements
of Labor Code section 226, and unfair competition in violation of Business and
Professions Code section 17200, et seq.”